The Supreme Court and Affirmative Action

Kermit Roosevelt, professor in the University of PennsylvaniaLaw School, with expertise in constitutional law and conflict of laws. Professor Roosevelt is a frequent media commentator on constitutional issues and supports the University’s affirmative action admissions policy

Quote: “This was the best outcome that supporters of affirmative action could realistically have hoped for: no explicit change in the law, just a suggestion that strict scrutiny means a little more than it did in Grutter.”

Theodore Ruger, professor in the University of Pennsylvania Law School,is a constitutional expert whose scholarship focuses on the application of judicial authority.

Quote: “Sometimes the second-best option may end up the best solution after all. Certainly neither party to the Fisher v. University of Texas affirmative action case would have preferred the narrow ruling the Supreme Court issued, effectively punting the issue back to the lower federal courts for further fact-finding. Nor was the ruling the outcome favored by the numerous amici organizations on both sides of the case who argued for a more robust judicial affirmation -– or repudiation – of the use of race in university admissions. Yet by shifting the case back to the lower courts, the Supreme Court has encouraged the constitutional debate on affirmative action to continue among a broader set of institutions around the country.” Read more

Quote: “Justice Kennedy's opinion for the court in the Fisher case shows that a majority of the justices continue to uphold the ‘strict scrutiny’ framework for analyzing the use of race in admissions policies established in the Bakke case and affirmed in the Gratz and Grutter decisions. This means that a majority agrees, contrary to Justices Thomas and Scalia, that considerations of race are not always unconstitutional. But the opinion by Justice Kennedy, who dissented in Grutter because he did not think the Court engaged in truly strict scrutiny, also signals that universities must make a compelling case that no race-neutral policies will produce adequate student body racial and ethnic diversity and that such racial and ethnic diversity is truly educational beneficial in order to survive the kind of strict scrutiny he believes the constitution requires. The result is likely to be continuing litigation over which university admissions systems can and cannot survive such strict scrutiny."